Legal Update
Proactive v Reactive – Article 2 and the Requirement to Investigate
27 April 2017

Proactive v Reactive – Article 2 and the Requirement to Investigate

Proactive v Reactive – Article 2 and the Requirement to Investigate

Adam Gould examines the European Court of Human Rights decision of Cevriglu v Turkey – 69546/12, 4 October 2016, where the Court held that the Applicant could recover damages from the State following the State’s failure to rectify the negligent omissions of a construction site owner and his company.


In 1998 the Applicant’s son, together with his friend, were found dead on a construction site after falling into an uncovered water-filled hole.

 By way of background, the following took place before the matter reached the ECHR:


  1. Criminal proceedings were brought against the owner of the construction site (HC) and Municipality Officials but were ultimately dismissed without consideration of the merits;
  2. Compensation proceedings were initiated in the Civil Court against HC, his construction company and the relevant local government entity, the Antakya Municipality (AM). That claim against AM was initially successful but on appeal, the Court of Cessation quashed the judgment against AM on jurisdictional grounds;
  3. The family members subsequently issued proceedings in the Administrative Court against AM, alleging negligence on the basis AM had failed to discharge its inspection duties. That claim was ultimately dismissed but then made its way to the ECHR.

The Law

The complaint was examined from the standpoint of Article 2 of the ECHR. The Court noted the growing body of case law:


  • Art. 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (LCB v the United Kingdom, 9 June 1998, [36], Reports of Judgments and Decisions 1998-III);
  • The State is obliged to afford general protection to society (Maiorano and Others v Italy, no. 28634.06, [107], 15 December 2009);
  • Positive obligations cover a wide area of sectors – including the dangers emanating from buildings and construction work (Pereira Henriques and Others v Luxembourg (dec.), no.60255/00, 26 August 2003); and
  • The positive obligation will arise in the context of any activity, whether public or not, in which the right to life may be at stake (Oneryildiz v Turkey [GC], no. 48939/99, [71], ECHR 2004-XII).


It follows that where Art. 2 is engaged, the State is obliged to take regulatory measures tailored to the special features of the activity in question and, whilst those regulations must provide for measures such as licensing and supervision, they ought also to create appropriate procedures for identifying shortcomings in the process and any errors committed by those responsible (Oneryildiz v Turkey [GC], above). Art. 2 will not, however, be satisfied if the protection afforded by domestic law exists only in theory and does not operate effectively in practice (Cavelli and Ciglio v Italy [GC], no. 32967/96, [53], ECHR 2002-I).

The above has always been subjected to the caveat that Art. 2 should not be interpreted in such a way as to impose an excessive burden on the authorities, taking into account the unpredictability of human nature and those priorities dictated by commercial viability (Ciechonska v Poland, no.19776/04, [64] , 14 June 2011).

ECHR Judgment

It is clear throughout the judgment that the Court was keen to avoid extending the applicability of Art. 2 to such an extent that it would become overly onerous on States and their emanations.

Nonetheless, the starting point for the Court’s deliberation was that it is reasonable to expect States to have effective mechanisms for the inspection of construction sites for which they issue permits, having regard to the potential dangers which may emanate from such a site. The Court went on to conclude that whilst a legislative and regulatory framework, designed to implement construction site safety measures, was in place, the same had failed to effectively avert the risks to life emanating from the site “on account of the absence of an adequate and unequivocal supervisory mechanism that functioned effectively in practice to ensure compliance with the relevant safety measures”. As such, the State was found to have failed to fulfil its obligations under Article 2 of the Convention.

Commentary / Practical Implications

This case represents the most recent development in a series of authorities culminating in an enhanced form of State responsibility whereby it is no longer sufficient to introduce regulatory and legislative provisions alone to safeguard the lives of those within jurisdiction. The State, it seems, must now go one step further and ensure regulations are accompanied by robust, comprehensive and effective methods of inspection, detection and enforcement.

This “enhanced” form responsibility is not confined to construction cases. It is apparent from previous authorities that the obligation is likely to arise in every field regulated by the State and its emanations. By way of illustration, Cieschonska v Poland, above, involved a tree falling on (and killing) the Applicant’s husband. Owing to a particularly poor police investigation, the ECHR concluded that the Applicant, who was taken as being denied effective recourse through criminal and civil proceedings, had been failed by the Polish legal system which had not provided “an adequate and timely response consonant with Poland’s obligations under Article 2 of the Convention” [78]. The Applicant was therefore awarded damages, payable by the State, irrespective of the fact that the death may have been caused by the negligence of a private individual.  

The decision in Cevrioglu serves to provide claimants in fatal claims with a possible alternative when a private proposed defendant is either insolvent or uninsured. State emanations, such as the Highway Authority for example, could find themselves the subject of an Article 2 claim. Furthermore, by virtue of the ECHR’s wider jurisdiction, redress can be sought by those who, under domestic law, would be left without a remedy. This group of potential victims includes (but is not necessarily limited to): parents of adult children, partners who are not either civil partners or spouses, and siblings.

Adam Gould